17 U.S.C. § 110 — Limitations on exclusive rights: Exemption

Page 37 TITLE 17—COPYRIGHTS § 110 States Code, as in effect on the day before such date of enactment. ‘‘(c) TERMINATION.—The amendments made by section 803 shall not apply to public performances or displays that occur on or after October 1, 1995.’’ EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–450, § 4, Oct. 4, 1984, 98 Stat. 1728, as amend- ed by Pub. L. 100–617, § 1, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 103–182, title III, § 332, Dec. 8, 1993, 107 Stat. 2114, provided that: ‘‘(a) The amendments made by this Act [amending this section and section 115 of this title and enacting provisions set out as a note under section 101 of this title] shall take effect on the date of the enactment of this Act [Oct. 4, 1984]. ‘‘(b) The provisions of section 109(b) of title 17, United States Code, as added by section 2 of this Act, shall not affect the right of an owner of a particular phonorecord of a sound recording, who acquired such ownership be- fore the date of the enactment of this Act [Oct. 4, 1984], to dispose of the possession of that particular phono- record on or after such date of enactment in any man- ner permitted by section 109 of title 17, United States Code, as in effect on the day before the date of the en- actment of this Act.’’ [Amendment by Pub. L. 103–182 to section 4 of Pub. L. 98–450, set out above, effective on the date the North American Free Trade Agreement enters into force with respect to the United States (Jan. 1, 1994), see section 335 of Pub. L. 103–182, formerly set out as an Effective Date of 1993 Amendment note under section 1052 of Title 15, Commerce and Trade.] EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECH- NOLOGICAL DEVELOPMENT Pub. L. 105–304, title I, § 104, Oct. 28, 1998, 112 Stat. 2876, provided that: ‘‘(a) EVALUATION BY THE REGISTER OF COPYRIGHTS AND THE ASSISTANT SECRETARY FOR COMMUNICATIONS AND IN- FORMATION.—The Register of Copyrights and the Assist- ant Secretary for Communications and Information of the Department of Commerce shall jointly evaluate— ‘‘(1) the effects of the amendments made by this title [enacting chapter 12 of this title and amending sections 101, 104, 104A, 411, and 507 of this title] and the development of electronic commerce and associ- ated technology on the operation of sections 109 and 117 of title 17, United States Code; and ‘‘(2) the relationship between existing and emergent technology and the operation of sections 109 and 117 of title 17, United States Code. ‘‘(b) REPORT TO CONGRESS.—The Register of Copy- rights and the Assistant Secretary for Communications and Information of the Department of Commerce shall, not later than 24 months after the date of the enact- ment of this Act [Oct. 28, 1998], submit to the Congress a joint report on the evaluation conducted under sub- section (a), including any legislative recommendations the Register and the Assistant Secretary may have.’’ § 110. Limitations on exclusive rights: Exemption of certain performances and displays Notwithstanding the provisions of section 106, the following are not infringements of copy- right: (1) performance or display of a work by in- structors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place de- voted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual im- ages, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made; (2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a per- formance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if— (A) the performance or display is made by, at the direction of, or under the actual su- pervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional ac- tivities of a governmental body or an accred- ited nonprofit educational institution; (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to— (i) students officially enrolled in the course for which the transmission is made; or (ii) officers or employees of govern- mental bodies as a part of their official du- ties or employment; and (D) the transmitting body or institution— (i) institutes policies regarding copy- right, provides informational materials to faculty, students, and relevant staff mem- bers that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions— (I) applies technological measures that reasonably prevent— (aa) retention of the work in acces- sible form by recipients of the trans- mission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemina- tion of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such reten- tion or unauthorized further dissemina- tion; (3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly; Page 38 TITLE 17—COPYRIGHTS § 110 1 So in original. Probably should be ‘‘concessionaire’’. (4) performance of a nondramatic literary or musical work otherwise than in a trans- mission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other com- pensation for the performance to any of its performers, promoters, or organizers, if— (A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting the rea- sonable costs of producing the performance, are used exclusively for educational, reli- gious, or charitable purposes and not for pri- vate financial gain, except where the copy- right owner has served notice of objection to the performance under the following condi- tions: (i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and (ii) the notice shall be served on the per- son responsible for the performance at least seven days before the date of the per- formance, and shall state the reasons for the objection; and (iii) the notice shall comply, in form, content, and manner of service, with re- quirements that the Register of Copy- rights shall prescribe by regulation; (5)(A) except as provided in subparagraph (B), communication of a transmission embody- ing a performance or display of a work by the public reception of the transmission on a sin- gle receiving apparatus of a kind commonly used in private homes, unless— (i) a direct charge is made to see or hear the transmission; or (ii) the transmission thus received is fur- ther transmitted to the public; (B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musi- cal work intended to be received by the gen- eral public, originated by a radio or television broadcast station licensed as such by the Fed- eral Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if— (i) in the case of an establishment other than a food service or drinking establish- ment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and— (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loud- speakers, of which not more than 4 loud- speakers are located in any 1 room or ad- joining outdoor space; or (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is commu- nicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual de- vice has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is commu- nicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; (ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (exclud- ing space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and— (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loud- speakers, of which not more than 4 loud- speakers are located in any 1 room or ad- joining outdoor space; or (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is commu- nicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is lo- cated in any 1 room, and no such audio- visual device has a diagonal screen size greater than 55 inches, and any audio por- tion of the performance or display is com- municated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; (iii) no direct charge is made to see or hear the transmission or retransmission; (iv) the transmission or retransmission is not further transmitted beyond the estab- lishment where it is received; and (v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed; (6) performance of a nondramatic musical work by a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horti- cultural fair or exhibition conducted by such body or organization; the exemption provided by this clause shall extend to any liability for copyright infringement that would otherwise be imposed on such body or organization, under doctrines of vicarious liability or re- lated infringement, for a performance by a concessionnaire,1 business establishment, or other person at such fair or exhibition, but shall not excuse any such person from liability for the performance; (7) performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, or of Page 39 TITLE 17—COPYRIGHTS § 110 the audiovisual or other devices utilized in such performance, and the performance is not transmitted beyond the place where the estab- lishment is located and is within the imme- diate area where the sale is occurring; (8) performance of a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily di- rected to blind or other handicapped persons who are unable to read normal printed mate- rial as a result of their handicap, or deaf or other handicapped persons who are unable to hear the aural signals accompanying a trans- mission of visual signals, if the performance is made without any purpose of direct or indirect commercial advantage and its transmission is made through the facilities of: (i) a govern- mental body; or (ii) a noncommercial edu- cational broadcast station (as defined in sec- tion 397 of title 47); or (iii) a radio subcarrier authorization (as defined in 47 CFR 73.293–73.295 and 73.593–73.595); or (iv) a cable system (as defined in section 111(f)); (9) performance on a single occasion of a dra- matic literary work published at least ten years before the date of the performance, by or in the course of a transmission specifically de- signed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, if the performance is made without any purpose of direct or indirect com- mercial advantage and its transmission is made through the facilities of a radio subcar- rier authorization referred to in clause (8)(iii), Provided, That the provisions of this clause shall not be applicable to more than one per- formance of the same work by the same per- formers or under the auspices of the same or- ganization; (10) notwithstanding paragraph (4), the fol- lowing is not an infringement of copyright: performance of a nondramatic literary or mu- sical work in the course of a social function which is organized and promoted by a non- profit veterans’ organization or a nonprofit fraternal organization to which the general public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the rea- sonable costs of producing the performance, are used exclusively for charitable purposes and not for financial gain. For purposes of this section the social functions of any college or university fraternity or sorority shall not be included unless the social function is held solely to raise funds for a specific charitable purpose; and (11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the di- rection of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion pic- ture is created by such computer program or other technology. The exemptions provided under paragraph (5) shall not be taken into account in any adminis- trative, judicial, or other governmental pro- ceeding to set or adjust the royalties payable to copyright owners for the public performance or display of their works. Royalties payable to copyright owners for any public performance or display of their works other than such perform- ances or displays as are exempted under para- graph (5) shall not be diminished in any respect as a result of such exemption. In paragraph (2), the term ‘‘mediated in- structional activities’’ with respect to the per- formance or display of a work by digital trans- mission under this section refers to activities that use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and analo- gous to the type of performance or display that would take place in a live classroom set- ting. The term does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher edu- cation for their independent use and retention or are typically purchased or acquired for ele- mentary and secondary students for their pos- session and independent use. For purposes of paragraph (2), accredita- tion— (A) with respect to an institution pro- viding post-secondary education, shall be as determined by a regional or national accred- iting agency recognized by the Council on Higher Education Accreditation or the United States Department of Education; and (B) with respect to an institution pro- viding elementary or secondary education, shall be as recognized by the applicable state certification or licensing procedures. For purposes of paragraph (2), no govern- mental body or accredited nonprofit edu- cational institution shall be liable for in- fringement by reason of the transient or tem- porary storage of material carried out through the automatic technical process of a digital transmission of the performance or display of that material as authorized under paragraph (2). No such material stored on the system or network controlled or operated by the trans- mitting body or institution under this para- graph shall be maintained on such system or network in a manner ordinarily accessible to anyone other than anticipated recipients. No such copy shall be maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer pe- riod than is reasonably necessary to facilitate the transmissions for which it was made. For purposes of paragraph (11), the term ‘‘making imperceptible’’ does not include the addition of audio or video content that is per- formed or displayed over or in place of exist- ing content in a motion picture. Nothing in paragraph (11) shall be construed to imply further rights under section 106 of Page 40 TITLE 17—COPYRIGHTS § 110 this title, or to have any effect on defenses or limitations on rights granted under any other section of this title or under any other para- graph of this section. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2549; Pub. L. 97–366, § 3, Oct. 25, 1982, 96 Stat. 1759; Pub. L. 105–80, § 12(a)(6), Nov. 13, 1997, 111 Stat. 1534; Pub. L. 105–298, title II, § 202, Oct. 27, 1998, 112 Stat. 2830; Pub. L. 106–44, § 1(a), Aug. 5, 1999, 113 Stat. 221; Pub. L. 107–273, div. C, title III, §§ 13210(6), 13301(b), Nov. 2, 2002, 116 Stat. 1909, 1910; Pub. L. 109–9, title II, § 202(a), Apr. 27, 2005, 119 Stat. 223.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Clauses (1) through (4) of section 110 deal with per- formances and exhibitions that are now generally ex- empt under the ‘‘for profit’’ limitation or other provi- sions of the copyright law, and that are specifically ex- empted from copyright liability under this legislation. Clauses (1) and (2) between them are intended to cover all of the various methods by which performances or displays in the course of systematic instruction take place. Face-to-Face Teaching Activities. Clause (1) of section 110 is generally intended to set out the conditions under which performances or displays, in the course of instructional activities other than educational broad- casting, are to be exempted from copyright control. The clause covers all types of copyrighted works, and exempts their performance or display ‘‘by instructors or pupils in the course of face-to-face teaching activi- ties of a nonprofit educational institution,’’ where the activities take place ‘‘in a classroom or similar place devoted to instruction.’’ There appears to be no need for a statutory definition of ‘‘face-to-face’’ teaching activities to clarify the scope of the provision. ‘‘Face-to-face teaching activi- ties’’ under clause (1) embrace instructional perform- ances and displays that are not ‘‘transmitted.’’ The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase ‘‘in the course of face-to-face teaching ac- tivities’’ is intended to exclude broadcasting or other transmissions from an outside location into class- rooms, whether radio or television and whether open or closed circuit. However, as long as the instructor and pupils are in the same building or general area, the ex- emption would extend to the use of devices for ampli- fying or reproducing sound and for projecting visual images. The ‘‘teaching activities’’ exempted by the clause encompass systematic instruction of a very wide variety of subjects, but they do not include perform- ances or displays, whatever their cultural value or in- tellectual appeal, that are given for the recreation or entertainment of any part of their audience. Works Affected.—Since there is no limitation on the types of works covered by the exemption, teachers or students would be free to perform or display anything in class as long as the other conditions of the clause are met. They could read aloud from copyrighted text material, act out a drama, play or sing a musical work, perform a motion picture or filmstrip, or display text or pictorial material to the class by means of a pro- jector. However, nothing in this provision is intended to sanction the unauthorized reproduction of copies or phonorecords for the purpose of classroom performance or display, and the clause contains a special exception dealing with performances from unlawfully made cop- ies of motion pictures and other audiovisual works, to be discussed below. Instructors or Pupils.—To come within clause (1), the performance or display must be ‘‘by instructors or pu- pils,’’ thus ruling out performances by actors, singers, or instrumentalists brought in from outside the school to put on a program. However, the term ‘‘instructors’’ would be broad enough to include guest lecturers if their instructional activities remain confined to class- room situations. In general, the term ‘‘pupils’’ refers to the enrolled members of a class. Nonprofit Educational Institution.—Clause (1) makes clear that it applies only to the teaching activities ‘‘of a nonprofit educational institution,’’ thus excluding from the exemption performances or displays in profit- making institutions such as dance studios and lan- guage schools. Classroom or Similar Place.—The teaching activities exempted by the clause must take place ‘‘in a class- room or similar place devoted to instruction.’’ For ex- ample, performances in an auditorium or stadium dur- ing a school assembly, graduation ceremony, class play, or sporting event, where the audience is not con- fined to the members of a particular class, would fall outside the scope of clause (1), although in some cases they might be exempted by clause (4) of section 110. The ‘‘similar place’’ referred to in clause (1) is a place which is ‘‘devoted to instruction’’ in the same way a classroom is; common examples would include a studio, a workshop, a gymnasium, a training field, a library, the stage of an auditorium, or the auditorium itself, if it is actually used as a classroom for systematic in- structional activities. Motion Pictures and Other Audiovisual Works.—The final provision of clause (1) deals with the special prob- lem of performances from unlawfully-made copies of motion pictures and other audiovisual works. The ex- emption is lost where the copy being used for a class- room performance was ‘‘not lawfully made under this title’’ and the person responsible for the performance knew or had reason to suspect as much. This special ex- ception to the exemption would not apply to perform- ances from lawfully-made copies, even if the copies were acquired from someone who had stolen or con- verted them, or if the performances were in violation of an agreement. However, though the performance would be exempt under section 110(1) in such cases, the copy- right owner might have a cause of action against the unauthorized distributor under section 106(3), or against the person responsible for the performance, for breach of contract. Projection Devices.—As long as there is no trans- mission beyond the place where the copy is located, both section 109(b) and section 110(1) would permit the classroom display of a work by means of any sort of projection device or process. Instructional Broadcasting. Works Affected.—The ex- emption for instructional broadcasting provided by sec- tion 110(2) would apply only to ‘‘performance of a non- dramatic literary or musical work or display of a work.’’ Thus, the copyright owner’s permission would be required for the performance on educational tele- vision or radio of a dramatic work, of a dramatico-mu- sical work such as an opera or musical comedy, or of a motion picture. Since, as already explained, audio- visual works such as filmstrips are equated with mo- tion pictures, their sequential showing would be re- garded as a performance rather than a display and would not be exempt under section 110(2). The clause is not intended to limit in any way the copyright owner’s exclusive right to make dramatizations, adaptations, or other derivative works under section 106(2). Thus, for example, a performer could read a nondramatic literary work aloud under section 110(2), but the copyright own- er’s permission would be required for him to act it out in dramatic form. Systematic Instructional Activities.—Under section 110(2) a transmission must meet three specified condi- tions in order to be exempted from copyright liability. The first of these, as provided by subclause (A), is that the performance or display must be ‘‘a regular part of the systematic instructional activities of a govern- mental body or a nonprofit educational institution.’’ The concept of ‘‘systematic instructional activities’’ is intended as the general equivalent of ‘‘curriculums,’’ but it could be broader in a case such as that of an in- Page 41 TITLE 17—COPYRIGHTS § 110 stitution using systematic teaching methods not re- lated to specific course work. A transmission would be a regular part of these activities if it is in accordance with the pattern of teaching established by the govern- mental body or institution. The use of commercial fa- cilities, such as those of a cable service, to transmit the performance or display, would not affect the ex- emption as long as the actual performance or display was for nonprofit purposes. Content of Transmission.—Subclause (B) requires that the performance or display be directly related and of material assistance to the teaching content of the transmission. Intended Recipients.—Subclause (C) requires that the transmission is made primarily for: (i) Reception in classrooms or similar places nor- mally devoted to instruction, or (ii) Reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in class- rooms or similar places normally devoted to instruc- tion, or (iii) Reception by officers or employees of govern- mental bodies as a part of their official duties or em- ployment. In all three cases, the instructional transmission need only be made ‘‘primarily’’ rather than ‘‘solely’’ to the specified recipients to be exempt. Thus, the trans- mission could still be exempt even though it is capable of reception by the public at large. Conversely, it would not be regarded as made ‘‘primarily’’ for one of the re- quired groups of recipients if the principal purpose be- hind the transmission is reception by the public at large, even if it is cast in the form of instruction and is also received in classrooms. Factors to consider in determining the ‘‘primary’’ purpose of a program would include its subject matter, content, and the time of its transmission. Paragraph (i) of subclause (C) generally covers what are known as ‘‘in-school’’ broadcasts, whether open- or closed-circuit. The reference to ‘‘classrooms or similar places’’ here is intended to have the same meaning as that of the phrase as used in section 110(1). The exemp- tion in paragraph (ii) is intended to exempt trans- missions providing systematic instruction to individ- uals who cannot be reached in classrooms because of ‘‘their disabilities or other special circumstances.’’ Ac- cordingly, the exemption is confined to instructional broadcasting that is an adjunct to the actual classwork of nonprofit schools or is primarily for people who can- not be brought together in classrooms such as pre- school children, displaced workers, illiterates, and shut-ins. There has been some question as to whether or not the language in this section of the bill is intended to include instructional television college credit courses. These telecourses are aimed at undergraduate and graduate students in earnest pursuit of higher edu- cational degrees who are unable to attend daytime classes because of daytime employment, distance from campus, or some other intervening reason. So long as these broadcasts are aimed at regularly enrolled stu- dents and conducted by recognized higher educational institutions, the committee believes that they are clearly within the language of section 110(2)(C)(ii). Like night school and correspondence courses before them, these telecourses are fast becoming a valuable adjunct of the normal college curriculum. The third exemption in subclause (C) is intended to permit the use of copyrighted material, in accordance with the other conditions of section 110(2), in the course of instructional transmissions for Government personnel who are receiving training ‘‘as a part of their official duties or employment.’’ Religious Services. The exemption in clause (3) of sec- tion 110 covers performances of a nondramatic literary or musical work, and also performances ‘‘of dramatico- musical works of a religious nature’’; in addition, it ex- tends to displays of works of all kinds. The exemption applies where the performance or display is ‘‘in the course of services at a place of worship or other reli- gious assembly.’’ The scope of the clause does not cover the sequential showing of motion pictures and other audiovisual works. The exemption, which to some extent has its counter- part in sections 1 and 104 of the present law [sections 1 and 104 of former title 17], applies to dramatico-musi- cal works ‘‘of a religious nature.’’ The purpose here is to exempt certain performances of sacred music that might be regarded as ‘‘dramatic’’ in nature, such as oratorios, cantatas, musical settings of the mass, cho- ral services, and the like. The exemption is not in- tended to cover performances of secular operas, musi- cal plays, motion pictures, and the like, even if they have an underlying religious or philosophical theme and take place ‘‘in the course of [religious] services.’’ To be exempted under section 110(3) a performance or display must be ‘‘in the course of services,’’ thus ex- cluding activities at a place of worship that are for so- cial, educational, fund raising, or entertainment pur- poses. Some performances of these kinds could be cov- ered by the exemption in section 110(4), discussed next. Since the performance or display must also occur ‘‘at a place of worship or other religious assembly,’’ the ex- emption would not extend to religious broadcasts or other transmissions to the public at large, even where the transmissions were sent from the place of worship. On the other hand, as long as services are being con- ducted before a religious gathering, the exemption would apply if they were conducted in places such as auditoriums, outdoor theaters, and the like. Certain Other Nonprofit Performances. In addition to the educational and religious exemptions provided by clauses (1) through (3) of section 110, clause (4) contains a general exception to the exclusive right of public per- formance that would cover some, though not all, of the same ground as the present ‘‘for profit’’ limitation. Scope of Exemption.—The exemption in clause (4) ap- plies to the same general activities and subject matter as those covered by the ‘‘for profit’’ limitation today: public performances of nondramatic literary and musi- cal works. However, the exemption would be limited to public performances given directly in the presence of an audience whether by means of living performers, the playing of phonorecords, or the operation of a receiving apparatus, and would not include a ‘‘transmission to the public.’’ Unlike the clauses (1) through (3) and (5) of section 110, but like clauses (6) through (8), clause (4) applies only to performing rights in certain works, and does not affect the exclusive right to display a work in public. No Profit Motive.—In addition to the other conditions specified by the clause, the performance must be ‘‘with- out any purpose of direct or indirect commercial ad- vantage.’’ This provision expressly adopts the principle established by the court decisions construing the ‘‘for profit’’ limitation: that public performances given or sponsored in connection with any commercial or profit- making enterprises are subject to the exclusive rights of the copyright owner even though the public is not charged for seeing or hearing the performance. No Payment for Performance.—An important condition for this exemption is that the performance be given ‘‘without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers.’’ The basic purpose of this requirement is to prevent the free use of copyrighted material under the guise of charity where fees or percentages are paid to performers, promoters, producers, and the like. How- ever, the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly ‘‘for the performance,’’ are paid a salary for duties encompassing the performance. Exam- ples are performances by a school orchestra conducted by a music teacher who receives an annual salary, or by a service band whose members and conductors per- form as part of their assigned duties and who receive military pay. The committee believes that perform- ances of this type should be exempt, assuming the other conditions in clause (4) are met, and has not Page 42 TITLE 17—COPYRIGHTS § 110 adopted the suggestion that the word ‘‘salary’’ be added to the phrase referring to the ‘‘payment of any fee or other compensation.’’ Admission Charge.—Assuming that the performance involves no profit motive and no one responsible for it gets paid a fee, it must still meet one of two alter- native conditions to be exempt. As specified in sub- clauses (A) and (B) of section 110(4), these conditions are: (1) that no direct or indirect admission charge is made, or (2) that the net proceeds are ‘‘used exclusively for educational, religious, or charitable purposes and not for private financial gain.’’ Under the second of these conditions, a performance meeting the other conditions of clause (4) would be ex- empt even if an admission fee is charged, provided any amounts left ‘‘after deducting the reasonable costs of producing the performance’’ are used solely for bona fide educational, religious, or charitable purposes. In cases arising under this second condition and as pro- vided in subclause (B), where there is an admission charge, the copyright owner is given an opportunity to decide whether and under what conditions the copy- righted work should be performed; otherwise, owners could be compelled to make involuntary donations to the fund-raising activities of causes to which they are opposed. The subclause would thus permit copyright owners to prevent public performances of their works under section 110(4)(B) by serving notice of objection, with the reasons therefor, at least seven days in ad- vance. Mere Reception in Public. Unlike the first four clauses of section 110, clause (5) is not to any extent a counterpart of the ‘‘for profit’’ limitation of the present statute. It applies to performances and displays of all types of works, and its purpose is to exempt from copyright liability anyone who merely turns on, in a public place, an ordinary radio or television receiving apparatus of a kind commonly sold to members of the public for private use. The basic rationale of this clause is that the sec- ondary use of the transmission by turning on an ordi- nary receiver in public is so remote and minimal that no further liability should be imposed. In the vast ma- jority of these cases no royalties are collected today, and the exemption should be made explicit in the stat- ute. This clause has nothing to do with cable television systems and the exemptions would be denied in any case where the audience is charged directly to see or hear the transmission. With respect to section 110(5), the conference sub- stitute conforms to the language in the Senate bill. It is the intent of the conferees that a small commercial establishment of the type involved in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), [95 S.Ct. 2040, 45 L.Ed.2d 84], which merely augmented a home-type re- ceiver and which was not of sufficient size to justify, as a practical matter, a subscription to a commercial background music service, would be exempt. However, where the public communication was by means of something other than a home-type receiving apparatus, or where the establishment actually makes a further transmission to the public, the exemption would not apply. On June 17, 1975, the Supreme Court handed down a decision in Twentieth Century Music Corp. v. Aiken, 95 S.Ct. 2040 [422 U.S. 151, 45 L.Ed.2d 84], that raised funda- mental questions about the proper interpretation of section 110(5). The defendant, owner and operator of a fast-service food shop in downtown Pittsburgh, had ‘‘a radio with outlets to four speakers in the ceiling,’’ which he apparently turned on and left on throughout the business day. Lacking any performing license, he was sued for copyright infringement by two ASCAP members. He lost in the District Court, won a reversal in the Third Circuit Court of Appeals, and finally pre- vailed, by a margin of 7–2, in the Supreme Court. The Aiken decision is based squarely on the two Su- preme Court decisions dealing with cable television. In Fortnightly Corp. v. United Artists, 392 U.S. 390 [88 S.Ct. 2084, 20 L.Ed.2d 1176, rehearing denied 89 S.Ct. 65, 393 U.S. 902, 21 L.Ed.2d 190], and again in Teleprompter Corp. v. CBS, 415 U.S. 394 [94 S.Ct. 1129, 39 L.Ed.2d 415], the Supreme Court has held that a CATV operator was not ‘‘performing’’ within the meaning of the 1909 statute, when it picked up broadcast signals off the air and re- transmitted them to subscribers by cable. The Aiken decision extends this interpretation of the scope of the 1909 statute’s right of ‘‘public performance for profit’’ to a situation outside the CATV context and, without expressly overruling the decision in Buck v. Jewell-La- Salle Realty Co., 283 U.S. 191 (1931) [51 S.Ct. 410, 75 L.Ed. 971], effectively deprives it of much meaning under the present law. For more than forty years the Jewell-La- Salle rule was thought to require a business establish- ment to obtain copyright licenses before it could le- gally pick up any broadcasts off the air and retransmit them to its guests and patrons. As reinterpreted by the Aiken decision, the rule of Jewell-LaSalle applies only if the broadcast being retransmitted was itself unli- censed. The majority of the Supreme Court in the Aiken case based its decision on a narrow construction of the word ‘‘perform’’ in the 1909 statute. This basis for the deci- sion is completely overturned by the present bill and its broad definition of ‘‘perform’’ in section 101. The Committee has adopted the language of section 110(5) with an amendment expressly denying the exemption in situations where ‘‘the performance or display is fur- ther transmitted beyond the place where the receiving apparatus is located’’; in doing so, it accepts the tradi- tional, pre-Aiken, interpretation of the Jewell-LaSalle decision, under which public communication by means other than a home receiving set, or further trans- mission of a broadcast to the public, is considered an infringing act. Under the particular fact situation in the Aiken case, assuming a small commercial establishment and the use of a home receiver with four ordinary loudspeakers grouped within a relatively narrow circumference from the set, it is intended that the performances would be exempt under clause (5). However, the Committee con- siders this fact situation to represent the outer limit of the exemption, and believes that the line should be drawn at that point. Thus, the clause would exempt small commercial establishments whose proprietors merely bring onto their premises standard radio or tel- evision equipment and turn it on for their customers’ enjoyment, but it would impose liability where the pro- prietor has a commercial ‘‘sound system’’ installed or converts a standard home receiving apparatus (by aug- menting it with sophisticated or extensive amplifi- cation equipment) into the equivalent of a commercial sound system. Factors to consider in particular cases would include the size, physical arrangement, and noise level of the areas within the establishment where the transmissions are made audible or visible, and the ex- tent to which the receiving apparatus is altered or aug- mented for the purpose of improving the aural or visual quality of the performance for individual members of the public using those areas. Agricultural Fairs. The Committee also amended clause (6) of section 110 of S. 22 as adopted by the Sen- ate. As amended, the provision would exempt ‘‘perform- ance of a nondramatic musical work by a governmental body or a nonprofit agricultural or horticultural orga- nization, in the course of an annual agricultural or hor- ticultural fair or exhibition conducted by such body or organization.’’ The exemption extends only to the gov- ernmental body or nonprofit organization sponsoring the fair; the amendment makes clear that, while such a body or organization cannot itself be held vicariously liable for infringements by concessionaires at the fair, the concessionaires themselves enjoy no exemption under the clause. Retail Sale of Phonorecords. Clause (7) provides that the performance of a nondramatic musical work or of a sound recording by a vending establishment open to the public at large without any direct or indirect ad- mission charge, where the sole purpose of the perform- ance is to promote the retail sale of copies or Page 43 TITLE 17—COPYRIGHTS § 111 phonorecords of the work, is not an infringement of copyright. This exemption applies only if the perform- ance is not transmitted beyond the place where the es- tablishment is located and is within the immediate area where the sale is occurring. Transmission to Handicapped Audiences. The new clause (8) of subsection 110, which had been added to S. 22 by the Senate Judiciary Committee when it reported the bill on November 20, 1975, and had been adopted by the Senate on February 19, 1976, was substantially amended by the Committee. Under the amendment, the exemption would apply only to performances of ‘‘non- dramatic literary works’’ by means of ‘‘a transmission specifically designed for and primarily directed to’’ one or the other of two defined classes of handicapped per- sons: (1) ‘‘blind or other handicapped persons who are unable to read normal printed material as a result of their handicap’’ or (2) ‘‘deaf or other handicapped per- sons who are unable to hear the aural signals accom- panying a transmission.’’ Moreover, the exemption would be applicable only if the performance is ‘‘without any purpose of direct or indirect commercial advan- tage,’’ and if the transmission takes place through gov- ernment facilities or through the facilities of a non- commercial educational broadcast station, a radio sub- carrier authorization (SCA), or a cable system. Editorial Notes AMENDMENTS 2005—Pub. L. 109–9, § 202(a)(4), inserted two pars. relat- ing to par. (11) at end of concluding provisions. Par. (11). Pub. L. 109–9, § 202(a)(1)–(3), added par. (11). 2002—Pub. L. 107–273, § 13301(b)(2), inserted concluding provisions relating to par. (2). Par. (2). Pub. L. 107–273, § 13301(b)(1), added par. (2) and struck out former par. (2) which read as follows: ‘‘per- formance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if— ‘‘(A) the performance or display is a regular part of the systematic instructional activities of a govern- mental body or a nonprofit educational institution; and ‘‘(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and ‘‘(C) the transmission is made primarily for— ‘‘(i) reception in classrooms or similar places nor- mally devoted to instruction, or ‘‘(ii) reception by persons to whom the trans- mission is directed because their disabilities or other special circumstances prevent their attend- ance in classrooms or similar places normally de- voted to instruction, or ‘‘(iii) reception by officers or employees of gov- ernmental bodies as a part of their official duties or employment;’’. Par. (4)(B). Pub. L. 107–273, § 13210(6), substituted colon for semicolon at end of introductory provisions. 1999—Par. (5)(A). Pub. L. 106–44 redesignated cls. (A) and (B) as (i) and (ii), respectively. 1998—Pub. L. 105–298, § 202(a)(2), inserted concluding provisions relating to par. (5). Par. (5). Pub. L. 105–298, § 202(a)(1), designated existing provisions as subpar. (A), inserted ‘‘except as provided in subparagraph (B),’’ after ‘‘(A)’’, and added subpar. (B). Par. (7). Pub. L. 105–298, § 202(b), inserted ‘‘or of the audiovisual or other devices utilized in such perform- ance,’’ after ‘‘phonorecords of the work,’’. 1997—Par. (8). Pub. L. 105–80, § 12(a)(6)(A), substituted semicolon for period at end. Par. (9). Pub. L. 105–80, § 12(a)(6)(B), substituted ‘‘; and’’ for period at end. Par. (10). Pub. L. 105–80, § 12(a)(6)(C), substituted ‘‘paragraph (4)’’ for ‘‘paragraph 4 above’’. 1982—Par. (10). Pub. L. 97–366 added par. (10). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–298 effective 90 days after Oct. 27, 1998, see section 207 of Pub. L. 105–298, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–366 effective 30 days after Oct. 25, 1982, see section 2 of Pub. L. 97–366, set out as a note under section 708 of this title. § 111. Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable (a) CERTAIN SECONDARY TRANSMISSIONS EX- EMPTED.—The secondary transmission of a per- formance or display of a work embodied in a pri- mary transmission is not an infringement of copyright if— (1) the secondary transmission is not made by a cable system, and consists entirely of the relaying, by the management of a hotel, apart- ment house, or similar establishment, of sig- nals transmitted by a broadcast station li- censed by the Federal Communications Com- mission, within the local service area of such station, to the private lodgings of guests or residents of such establishment, and no direct charge is made to see or hear the secondary transmission; or (2) the secondary transmission is made sole- ly for the purpose and under the conditions specified by paragraph (2) of section 110; or (3) the secondary transmission is made by any carrier who has no direct or indirect con- trol over the content or selection of the pri- mary transmission or over the particular re- cipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: Provided, That the provisions of this paragraph extend only to the activities of said carrier with respect to secondary trans- missions and do not exempt from liability the activities of others with respect to their own primary or secondary transmissions; (4) the secondary transmission is made by a satellite carrier pursuant to a statutory li- cense under section 119 or section 122; (5) the secondary transmission is not made by a cable system but is made by a govern- mental body, or other nonprofit organization, without any purpose of direct or indirect com- mercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the ac- tual and reasonable costs of maintaining and operating the secondary transmission service. (b) SECONDARY TRANSMISSION OF PRIMARY TRANSMISSION TO CONTROLLED GROUP.—Notwith- standing the provisions of subsections (a) and (c), the secondary transmission to the public of a performance or display of a work embodied in a primary transmission is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506, if the primary transmission is not made for reception by the public at large but is controlled and limited to reception by par-